In this case, the first Foreign Corrupt Practices Act criminal prosecution against acorporation to proceed to jury trial, the Court has been asked to vacate the convictions anddismiss the indictment because of alleged prosecutorial misconduct. On November 29, 2011,the Court conducted a hearing on this motion. Before the hearing began, the Court provided adraft of this order to all the lawyers and allowed them three hours to prepare for argument. Thehearing lasted for more than two and a half hours.When faced with motions that allege governmental misconduct, most district judges arereluctant to find that the prosecutors’ actions were flagrant, willful or in bad faith.

1

In this case,for example, the Court denied several previous motions to dismiss and permitted theprosecution to proceed over the heated objections of defense counsel because it was willing to

1

For an example of a court’s reluctance to make those findings,

see

United States v.Chapman

, 524 F.3d 1073 (9th Cir. 2008). There, the apparently ambivalent district judge statedthat “the government did not act intentionally” but also said that the government “did not . . . act[ ] . . . unintentionally.” The appellate court characterized this ruling as “somewhat confusing.”

accept the prosecutors’ assurances that their conduct was inadvertent and would not berepeated. The Court even said it was “not anxious to attribute a deliberate, intentional, anddevious motive” to the Government. April 5, 2011, R.T. at 448.In this Court’s experience, almost all of the prosecutors in the Office of the United StatesAttorney for this district consistently display admirable professionalism, integrity and fairness.

2

So it is with deep regret that this Court is compelled to find that the Government team allowed akey FBI agent to testify untruthfully before the grand jury, inserted material falsehoods intoaffidavits submitted to magistrate judges in support of applications for search warrants andseizure warrants, improperly reviewed e-mail communications between one Defendant and herlawyer, recklessly failed to comply with its discovery obligations, posed questions to certainwitnesses in violation of the Court’s rulings, engaged in questionable behavior during closingargument and even made misrepresentations to the Court.Consequently, the Court throws out the convictions of Defendants LindseyManufacturing Company, Keith E. Lindsey and Steve K. Lee and dismisses the FirstSuperseding Indictment.

II.BACKGROUND

On October 21, 2010, the Government filed a First Superseding Indictment (“FSI”)charging Defendants Keith E. Lindsey, Steve K. Lee, and Lindsey Manufacturing Company(“the Lindsey Defendants”) with conspiracy to violate the Foreign Corrupt Practices Act(“FCPA”), as well as substantive violations of the FCPA. Lindsey Manufacturing Company(“LMC”) is a relatively small, privately-owned company that manufactures emergencyrestoration systems and other equipment used by electrical utility companies. Keith Lindsey isits President and CEO. Lee is LMC’s Vice-President and CFO.The gist of the allegations in the FSI was that the Lindsey Defendants paid bribes to twohigh-ranking employees of the Comisión Federal de Electricidad (“CFE”), an electric utilitycompany wholly-owned by the Mexican Government. LMC funneled the alleged bribes to theCFE employees (Nestor Moreno and Arturo Hernandez) by making payments to GrupoInternational (“Grupo”), a company owned and controlled by co-Defendants Enrique FaustinoAguilar Noriega (“Enrique Aguilar”) and his wife, Angela Maria Gomez Aguilar (“Angela

2

Two of the three members of the prosecution team in this case were from theWashington, D.C., main office of the Department of Justice (“DOJ”), including the lawyer whoinitiated the investigation. Only one “local” AUSA was involved.

The payments from LMC to Grupo ostensibly were commissions for servicesperformed by Enrique Aguilar in his capacity as LMC’s sales representative in Mexico. Inreality, according to the indictment and to the Government in its trial presentation, largeportions of those payments were used to bribe Messrs. Moreno and Hernandez. The allegedbribes consisted primarily of the purchase of an expensive Ferrari and a fancy yacht forMoreno, payment of his American Express bills, and a number of other payments benefittingHernandez and him.The investigation and ensuing charges in this case resulted directly from an earlierinvestigation and several prosecutions in the Southern District of Texas.

See

United States v. ABB Inc

., No. 10-CR-664 (S.D. Tex.),

United States v. ABB Ltd.-Jordan

, No. 10-CR-665 (S.D.Tex.), and

United States v. O’Shea

,No. 09 CR-629 (S.D. Tex.). In those cases the Government alleged that the ABB entities and anABB employee paid bribes to CFE officials through a Mexican middleman named FernandoMaya Basurto and his father. The Government’s lead prosecutor in those cases was one of theDepartment of Justice prosecutors at this trial, and sometime in 2008 she initiated theinvestigation that led to the charges here.

4

The defendants in the ABB cases allegedly used an Enrique Aguilar-controlled entitynamed “Sorvill” to funnel at least some of those bribe payments to the CFE officials. As will beshown below, the prosecutors in this case pushed aggressively to link Sorvill to the LindseyDefendants, when in fact there was no evidence even suggesting the Lindsey Defendants everheard of Sorvill.In late December 2009 the Government obtained a sealed warrant for the arrest of Enrique Aguilar, a Mexican national. He has never been arrested and was not present at trial.But on August 9, 2010, his wife Angela Aguilar (“Angela”)

was

arrested, pursuant to awarrant, while she was engaged in business in Texas. That day, a complaint containing criminal

3

The Aguilars were the only Defendants named in the original indictment. In the FirstSuperseding Indictment, Enrique Aguilar was charged with conspiracy to violate the FCPA,substantive FCPA violations, conspiracy to commit money laundering, and substantive moneylaundering violations. Angela Aguilar was charged with conspiracy to commit moneylaundering and substantive money laundering violations.

4

The other DOJ lawyer did not begin to work on this case until considerably after theFirst Superseding Indictment was returned. He was not involved in the ABB cases or in thegrand jury proceedings and the non-production of grand jury transcripts that are discussedbelow.